818 P.2d 918 (Okla.Crim.App. 1991), PC-88-1053, James v. State

Docket Nº:PC-88-1053.
Citation:818 P.2d 918
Party Name:Terrance A. JAMES, Petitioner, v. The STATE of Oklahoma, Respondent.
Case Date:September 26, 1991
Court:Court of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma

Page 918

818 P.2d 918 (Okla.Crim.App. 1991)

Terrance A. JAMES, Petitioner,

v.

The STATE of Oklahoma, Respondent.

No. PC-88-1053.

Court of Criminal Appeals of Oklahoma.

September 26, 1991.

Page 919

An Appeal from the District Court of Muskogee County; Hardy Summers, District Judge.

Terrance A. James, Petitioner, has appealed to this Court from an order of the District Court of Muskogee County denying

Page 920

his application for post-conviction relief in Case No. CRF 83-64. A direct appeal of Petitioner's conviction was filed with this Court wherein we affirmed the conviction and death sentence. See James v. State, 736 P.2d 541 (Okl.Cr.1987). Petitioner then filed a Writ of Certiorari with the Supreme Court of the United States which was denied. See James v. Oklahoma, 484 U.S. 970, 108 S.Ct. 467, 98 L.Ed.2d 406 (1987). Petitioner's subsequent Application for Post-Conviction relief was filed in the District Court of Muskogee County in January 1988. Hearings were held through the months of April, May and July, with the trial court denying the application in November 1988. It is this denial which the Petitioner appeals. AFFIRMED.

Don J. Gutteridge, Jr., Oklahoma City, for petitioner.

Robert H. Henry, Atty. Gen., Wellon B. Poe, Asst. Atty. Gen., Oklahoma City, for respondent.

OPINION DENYING POST-CONVICTION RELIEF

LUMPKIN, Vice Presiding Judge.

Petitioner has appealed to this Court from an order of the District Court of Muskogee County denying his application for post-conviction relief in Case No. CRF 83-64. Petitioner raises five allegations of error: 1) the jury was not properly instructed as to the aggravating circumstance that the murder was especially heinous, atrocious and cruel; 2) the failure to receive the proper instruction necessitates a modification of his death sentence to life imprisonment; 3) insufficient evidence to support the aggravating circumstance that the Petitioner committed the murder while serving a sentence of imprisonment for conviction of a felony; 4) ineffective assistance of trial counsel; 5) denial of a state funded psychiatrist to assist Petitioner at trial and at post-conviction.

A direct appeal of Petitioner's conviction was filed with this Court wherein we affirmed the conviction and death sentence. See James v. State, 736 P.2d 541 (Okl.Cr.1987). Petitioner then filed a Writ of Certiorari with the Supreme Court of the United States which was denied. See James v. Oklahoma, 484 U.S. 970, 108 S.Ct. 467, 98 L.Ed.2d 406 (1987). Petitioner's subsequent Application for Post-Conviction relief was filed in the District Court of Muskogee County in January 1988. Hearings were held through the months of April, May and July, with the trial court denying the application in November 1988. It is this denial which the Petitioner appeals.

Three of Petitioner's allegations of error: insufficient evidence to support the aggravating circumstance that the murder was committed while the defendant was imprisoned for a felony, ineffective assistance of trial counsel and denial of a psychiatrist at trial 1 are issues which have been, or could have been, raised on direct appeal. The doctrine of res judicata bars consideration in post-conviction proceedings of issues which have been, or which could have been, raised on direct appeal. Coleman v. State, 693 P.2d 4, 5 (Okl.Cr.1984); Castleberry v. State, 590 P.2d 697, 703 (Okl.Cr.1979). Petitioner is therefore barred from asserting any claims previously raised, or any claims which could have been raised, in his direct appeal. 22 O.S.1981, § 1086. It is not the office of the Post-Conviction Procedure Act, 22 O.S.1981, § 1080 et seq., to provide a "second appeal under the mask of post-conviction application." Ellington v. Crisp, 547 P.2d 391, 393 (Okl.Cr.1976).

In his first allegation of error, Petitioner alleges that his death sentence must be vacated and his sentence modified to life imprisonment because the aggravating circumstance of "especially heinous, atrocious or cruel" was applied in an unconstitutional manner, pursuant to Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100

Page 921

L.Ed.2d 372 (1988). 2 That decision constitutes an intervening change in the law which did not exist at the time of Petitioner's previous appeals. Therefore, we find sufficient reason exists for not previously asserting this allegation of error and will address the merits of Petitioner's contention. 22 O.S.1981, § 1086; Jones v. State, 704 P.2d 1138, 1140 (Okl.Cr.1985); Stewart v. State, 495 P.2d 834, 836 (Okl.Cr.1972).

In Maynard v. Cartwright the United States Supreme Court found that defendant Cartwright's death sentence was invalid because the aggravating circumstance that the murder was "especially heinous, atrocious or cruel" was unconstitutionally vague as applied in that case. Specifically, the Court held that the jury's finding that the murder was "especially heinous, atrocious or cruel" violated the previous dictates in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), which required that the discretion of the sentencer be limited by some comprehensible standards. The lack of limitations and guidance provided in the instruction to the jury on this aggravating circumstance lead the Supreme Court to affirm the Tenth Circuit's previous vacation of the death sentence. The jury in Petitioner James' trial was given the same instruction as in the Cartwright case. Although a correct instruction at the time, we now recognize it was insufficient as it failed to properly channel or limit the sentencer's discretion in determining whether to impose a death sentence.

While the improper instruction causes the aggravating circumstance of "especially heinous, atrocious or cruel" to fail it does not necessitate an automatic modification of the death sentence to life.

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